Another Law Decided at the Buzzer

Have you ever heard the joke, “How many people voted for Bush in 2000? Five.” Yeah, it’s a pretty lame and dated anecdote meant to point out just how fragile the difference can be between something being considered the law of the land or blatantly illegal.

It all came down to one vote again today. When the Supreme Court released its decision that basically throws out the Voting Rights Act of 1965 until the criteria that was used in determine what states are subject to it gets a huge overhaul. A criteria that will garner huge support in congress to act on immediately, such that if we are lucky will be completed sometime right after they fix the budget, medicare, social security, and win the war on terror. The part of the decision that catches my attention is that, yet again, a Supreme Court decision that will affect millions of Americans came down to effectively a single vote.

It wasn't always this way. From 1801 to 1940, less than 1 in 50 of the Supreme Court's total rulings were resolved by 5-to-4 decisions. Under Chief Justice Roberts, who assumed his role in 2005, more than 1 in 5 Court's rulings have been decided by "minimum-winning coalitions." In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

That's not to place the blame on Robert's feet. The trend started a decade before his appointment, and he actually acknowledged the trend early in his term. "I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions," Roberts told The New Republic's Jeffrey Rosen in 2006. "I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn't, it's going to lose its credibility and legitimacy as an institution."

Now is the day and age when a suit is brought before the court that we start to tally the votes for one side or the other without even hearing the merits of the case itself. Such as today’s decision concerning the Voting Rights Act. Most people predicted that a decision would be within the narrow range of 3-6 to 5-4. Most pundits only considering Kennedy and perhaps Roberts as the votes that could ultimately make or break the law of the land.

This is the law of the land, not a questionnaire pertaining to the case of Boxers v. Briefs. How can nine people with resumes the size of the decisions they publish seem incapable to build some degree of consensus in matters like this? OR the Affordable Care Act OR Citizens United OR Walmart v. Dukes OR Ashcroft v. Iqbal OR the aforementioned Bush v. Gore? I find myself asking that if the Supreme Court of the United States can't come to a true consensus about what the government should and shouldn't be able to do, how is it that anyone can claim any such knowledge. Poll four of the highest judges in the land and they'll tell you that Obamacare is illegal, but since they are outvoted by one person, all 300,000,000+ Americans must abide by it. It seems like a titanic switch to be hinged on the whim of a couple human beings.

So much is determined not as a result of an interpretation of law, but because one interpretation swayed one more person then another. Maybe the Supreme Court should be more like a trial jury, where consensus needs to be built or another court panel gets to make the decision. The process seems to have worked up until recent times. when both parties leverage anything they can to pass their agendas, partisan nominees seem to be more common place at all levels of federal courts. Sides with slight advantages doing what they can to hold onto them, while the side with a slight disadvantage does everything they can to get an in. If I where a movie writer, I'd get to work on a screen play about justice assassination plots in order to swing a 4-5 vote to a 5-4. Perhaps the writers of 24 over at Fox would pick up on that?

Alas, the problem will continue to get worse before it gets better, with both conservative and liberal senators very aware of the tally when deciding how many skeletons to dig out of the closet before even allowing a confirmation vote to proceed. The idea of a president on either side of the isle nominating a true moderate in the hopes of having a more mature Supreme Court seems about as likely as Congress getting audited by the IRS only to be told they are entitled to a larger refund.